In Florida, Gay Adoption May No Longer Be BannedFlorida is the only state with an outright ban against adoptions by gay people, but that may not be true for long. State courts have overruled Florida law in three cases and approved gay adoptions. The state, however, has appealed the court rulings and says it will continue to fight to uphold the law.

Martin Gill and his partner are seeking to adopt two brothers, ages 5 and 9. The boys have lived with the two men for five years as foster children. For most of that time, the Miami couple has been in court fighting for something Florida forbids gay couples: the right to adopt children.

Florida is the only state in the nation with an outright ban on gay adoptions. In a series of recent decisions, courts have overruled the ban — saying that it violates Florida's Constitution. Now, the issue is before a state appeals court.

Even in court papers, the names of Gill's partner and the children have not been released for privacy reasons.

Fate Brought Them Together

By the time they began taking care of the two brothers, Gill and his partner were experienced foster parents, Gill says. They had taken care of six different children under license from the state's Department of Children and Families.

They had planned to stop fostering children and move to Georgia, where they'd bought a home and where they hoped they might eventually adopt. But that plan changed.

Shortly before Christmas in 2004, Gill got a phone call from a social worker asking him to take two brothers temporarily as foster children. At first, he said they couldn't because they'd soon be moving.

"Basically, then she said, 'Well, you could give these kids a great Christmas, and I'd hate to see them go to a shelter,' that kind of thing," Gill says. "And I thought to myself, 'You know, we've got Christmas plans, but they're right here, and we're inviting family here.' Certainly, we have room for two more needy kids. And I said, 'OK,' we said yes."

Gill says the boys, victims of neglect, were in bad shape. Both had severe cases of ringworm. The baby — just 4 months old at the time — had a fever.

Several months later, after a social worker told them the brothers would probably be separated and the older one likely not adopted, Gill and his partner went to court. A state judge ruled in their favor, finding that Florida's law banning gay adoption was not in the best interests of children and was unconstitutional.

A Specific Ban

While other states restrict the rights of gays to adopt children, Florida is the only state with a specific ban on the books. It dates back to 1977 and was inspired by Anita Bryant's campaign against expanded rights for gays.

The ACLU has fought the law and lost twice. Gill's lawyer Rob Rosenwald says this case has succeeded so far because it focuses on one constitutional issue: a violation of equal protection rights of both children and gay adopting parents.

"The children, in that it permanently denies them the chance to have a permanent home with their gay caretaker. So they will forever be in a state of foster care. It violates the rights of the parents by treating them differently than their straight counterparts without any rational basis," Rosenwald says.

A Changing Tide In Florida

Along with this case, there are other signs that attitudes toward gay adoption are changing both in the courts and among the public. A recent Quinnipiac poll found a majority of Floridians now oppose the ban.

And the Gill case is one of three in which state courts have overruled Florida law and approved gay adoptions.

Even within state government, opposition to the law sometimes appears lukewarm. The state Department of Children and Families recently reversed itself and approved payment of health and education benefits to the adoptive son of a gay man.

As to why it opposes adoption in the other cases, department spokesman Joe Follick says it's a matter of upholding the law.

"Like every state agency, we are governed by the laws set by the Legislature, approved by the governor, and if necessary, adjudicated by the courts," Follick says. "Until there is a unified appellate court decision on this issue, we are bound by Florida statute to defend and adhere to the law."

That issue is now before Florida's 3rd District Court of Appeals, and is most likely headed to the state Supreme Court.